Under
section 1915(e)(2)(B) of title 28 of the United States Code,
the Court must review civil complaints filed in forma
pauperis and dismiss any portion of the complaint that
is frivolous or malicious, that fails to state a claim upon
which relief may be granted, or that seeks monetary relief
from a defendant who is immune from such relief. Id.
Although detailed allegations are not required, the complaint
must include sufficient facts to afford the defendants fair
notice of the claims and the grounds upon which they are
based and to demonstrate a plausible right to relief.
Bell Atlantic v. Twombly, 550 U.S. 544, 555-56
(2007). Conclusory allegations are not sufficient.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570. Nevertheless, it is
well-established that “[p]ro se
complaints 'must be construed liberally and interpreted
to raise the strongest arguments that they
suggest.'” Sykes v. Bank of Am., 723 F.3d
399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see
also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir.
2010) (discussing special rules of solicitude for pro
se litigants).

I.
Allegations

On July
7, 2016, Malanson escorted McCray's cellmate back to the
cell after a phone call. He told McCray to get on his bunk,
but did not handcuff him. Malanson then opened the cell door
to admit the cellmate. After Malanson secured McCray's
cellmate in the cell, McCray began assaulting his cellmate by
punching him in the head. Defendant Malanson called a Code
Blue.

After
the code was called, correctional officers and other staff
members came to the housing unit. McCray was still assaulting
his cellmate. Defendant Rivera ordered McCray to stop
fighting and then ordered the cell door opened. When the door
was opened, McCray immediately stopped assaulting his
cellmate and lay on his stomach on his bunk. Defendants
Bertrand, Van Nostrand, Thompson, Mclain, Malanson, and
Cheney ran into the cell. Defendant Bertrand threw McCray
from the bunk to the floor. When McCray was secured,
defendants Van Nostrand, Cheney, Bertrand, Malanson, and
Mclain began kicking McCray in the head and back, punching
him in the face and bouncing his head on the floor.

When
the camera arrived, McCray was secured in handcuffs and
chains and escorted to the medical unit. Staff cleaned
McCray's face, which was bleeding, and photographed his
injuries. The correctional officers then escorted him to
restrictive housing. About thirty minutes later, McCray was
taken to the MacDougall building of the MacDougall-Walker
Correctional Institution for treatment of his head injury and
to determine whether he had a concussion. He remained there
for five days. After he was cleared by the medical unit,
McCray was returned to the Walker building.

On July
12, 2016, while in restrictive housing, McCray spoke to
Salious, the restrictive housing unit manager. McCray
questioned the use of excessive force by correctional staff
when he was not resisting. Salious told McCray that he was
beaten because he was “always talking shit to
them” and that Mclain had participated in the incident
because in November 2015, McCray and his cellmate threw a
food tray at Mclain. Salious cautioned McCray to “keep
your mouth shut and no more hitting my staff with food
trays.” ECF No. 1 at 10.

II.
Analysis

The use
of excessive force against a prisoner can constitute cruel
and unusual punishment even where the inmate does not suffer
serious injuries. See Hudson v. McMillian, 502 U.S.
1, 4 (1992), accord Wilkins v. Gaddy, 559 U.S. 34,
34, 36 (2010) (per curiam). The “core judicial
inquiry” is “not whether a certain quantum of
injury was sustained but rather whether force was applied in
a good faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.”
Wilkins, 559 U.S. at 37 (quoting Hudson,
503 U.S. at 7 (internal quotation marks omitted)).

McCray
alleges that when the force was used he was on his bunk and
not resisting any officer. Thus, there appeared no need to
use force to restore discipline. In addition, the alleged
comment by Salious suggests that the force was used
maliciously. Accordingly, the excessive force claim will
proceed.

McCray
also includes as defendants Deputy Warden Mudano and Captain
Salious, both supervisory officials. Mudano responded to
McCray's grievance, stating that staff responded in
accordance with all policies and procedures. He did not
address the allegation that McCray was not resisting when
force was used against him. Salious told McCray that he was
assaulted for his actions toward correctional staff and
warned him to alter his behavior. Neither defendant directly
participated in the assault, and McCray's allegations are
not sufficient to allow their actions to be construed as
sanctioning the allegedly abusive conduct. The court thus
considers McCray's allegations against Salious and Mudano
to be insufficient to support a claim for supervisory
liability.

The
only reference to Correctional Officer Joyal in the complaint
is that he delivered a disciplinary report for assault to
McCray. Because that action did not violate any
constitutionally protected right, all claims against Joyal
are dismissed.

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